J.D. VS. G.W. (FD-12-1656-14, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0802-18T1
J.D.,
Plaintiff-Appellant,
v.
G.W.,
Defendant-Respondent.
______________________________
Submitted January 23, 2020 – Decided March 2, 2020
Before Judges Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FD-12-1656-14.
J.D., appellant pro se.
Respondent has not filed a brief.
PER CURIAM
In this non-dissolution matter, plaintiff mother appeals from a September
5, 2018 Family Part order, denying her motion to suspend defendant father's
parenting time and for sole legal custody of their five-year-old daughter, C.D.1
We affirm.
The parties share joint legal custody, with plaintiff designated as the
residential parent of C.D., a child with reported "medical challenges." The
parties engaged in extensive motion practice primarily propelled by accusations
that, given her medical issues, defendant did not properly care for C.D. during
his parenting time. As a result, by court order, defendant was afforded
supervised parenting time only pending his completion of training to
appropriately care for C.D.
Subsequently, at a February 14, 2018 hearing on plaintiff's Order to Show
Cause (OTSC), defendant provided proof that he completed training at Raritan
Bay Medical Center on August 10, 2016. After considering defendant's
submission and reviewing a report of the 2017 supervised visits, during which
the supervisor reported no concerns regarding defendant's interaction with C.D.
and documented plaintiff's repeated failure to appear with C.D.,2 the judge
1
We use initials in order to protect the privacy of the parties and their child.
2
In responding to plaintiff's claim that her absences were attributable to C.D.'s
illness, the judge noted that "it was striking . . . that the child was consistently
sick on Saturdays" when defendant's supervised visits were scheduled. The
judge pointed out that there was a "history" of plaintiff impeding defendant's
parenting time that would not be "tolerate[d]."
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entered an order affording defendant unsupervised parenting time "every
Saturday from [10:00 a.m. to 2:00 p.m.]," effective February 17, 2018, to be
"expand[ed] to [10:00 a.m. to 6:00 p.m.]," effective March 10, 2018. Given the
acrimony between the parties, the judge ordered that the exchanges were to take
place at the New Brunswick Police Department.
Thereafter, on August 29, 2018, plaintiff filed another OTSC to suspend
defendant's parenting time and grant her sole legal custody of C.D. based on
allegations that, during his parenting time, defendant had been "spanking[]"
C.D., putting "tight little cornrows" in her hair that "pull[] her scalp" and "hurt[]
her," removing her clothes and "examin[ing] her body," and feeding her only
"McDonalds." In support, plaintiff provided a New Brunswick police report
documenting a child custody dispute that occurred during the August 25, 2018
visitation exchange, during which plaintiff made these allegations to the
reporting officer in the presence of defendant and C.D.
According to the report, when defendant asked C.D. in the officer's
presence whether he hit her, C.D. "looked up at [defendant] and nodded her head
up and down saying 'yes.'" The report also indicated that plaintiff returned to
the police station three days later and asked the officer to "add" to the report that
defendant reacted to C.D.'s admission that he hit her by "extend[ing] his arms
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like he wanted to choke [C.D.]" out of anger. However, the officer reported
instead that while defendant "appeared angry," he did not "recall . . . [defendant]
extend[ing] his arms as if he wanted to choke his daughter." The report noted
further that the officer reported the allegations to the Division of Child
Protection and Permanency (DCPP) and "advised [plaintiff] to follow up with
her DCPP case worker and the judge overseeing the visitation process."
At the September 5, 2018 hearing on plaintiff's OTSC, in addition to the
police report, the judge considered an August 29, 2018 update from DCPP,
indicating that the investigation into plaintiff's allegations against defendant
were still pending, but that the case would be submitted for closure shortly.
Addressing the judge, plaintiff changed her position from seeking suspension of
defendant's parenting time to "want[ing] him . . . supervised" during his
visitation with C.D. In response, defendant submitted two letters, dated August
30 and September 3, 2018, denying any wrongdoing, including spanking or
hitting C.D. in any way, and delineating how plaintiff has continuously
attempted to thwart his parenting time.
As an example, according to defendant, plaintiff "lied to [the police],
stating [he] had weapons in [his] house, which resulted in multiple police cars
coming to [his] house, searching [his] house, as well as [his] father's apartment."
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Additionally, plaintiff "lied to the [c]ourt when she did not want to cooperate in
the transportation for [C.D.'s] visitation" by stating "she did not have a vehicle"
when defendant "witnessed her drive up in her car each time [he] would come
to [c]ourt." Further, plaintiff "lied to the [c]ourt, stating [defendant] stood on
the courthouse steps and threatened her [and C.D.'s lives,]" when "[t]he
courthouse cameras . . . show[ed] . . . no interaction" between them. Notably,
at the hearing, defendant also testified that during the DCPP investigation, when
C.D. was interviewed by the DCPP workers about plaintiff's allegations, she
denied being spanked by defendant. Defendant stated further that C.D. told one
of his friends "mommy lied on daddy."
Finding plaintiff "failed to demonstrate a substantial change in
circumstances," the judge denied "[p]laintiff's request to suspend defendant's
parenting time and for sole legal custody . . . without prejudice" pending the
completion of DCPP's investigation. The judge explained that if DCPP
substantiated the allegations, that could result in "a modification" or "a
suspension of [defendant's] parenting time." Considering C.D.'s "best interest,
. . . safety, [and] . . . welfare," the judge stressed that he "[did] not trivialize [the
allegations]."
However,
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[t]he [c]ourt also weighs those against the he said, she
said, where the plaintiff is finger pointing at the
defendant, the defendant denying it, and finger pointing
at the plaintiff, for essentially, contriving these
allegations. The [c]ourt is not in a position to determine
who is telling the truth or not. DCPP is obviously in a
far better position, because they're on the ground, so to
speak. They're investigating, doing interviews, and
what have you.
The judge further noted that if there was "evidence suggesting . . . , as
[defendant] alleges, that this is another example of plaintiff's attempt to interfere
with parenting time, then the [c]ourt has recourse under [Rule] 5:3-7, which
could include a transfer of custody." In that regard, the judge pointed out that
"[i]n the two years that [he had] been responsible for [the] case, [plaintiff had]
thrown every roadblock known to mankind in front of [defendant's] ability" to
exercise his parenting time. The judge also indicated that the conflicting account
plaintiff provided to the DCPP worker when she stated that "[defendant] choked
[C.D.] in front of" the responding police officer during the August 25, 2018
"custody exchange at the New Brunswick Police Department" 3 was emblematic
of "the lies[] and . . . schemes concocted by . . . plaintiff," during the course of
3
When confronted with the conflicting statement by the judge, plaintiff retorted
the DCPP worker "wrote it wrong."
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the proceedings, "mak[ing] . . . her allegations . . . difficult to assess." The judge
entered a memorializing order and this appeal followed.
On appeal, plaintiff argues the judge erred "as a matter of law" by
"disregarding key facts that in their totality[,] demonstrate the changed
circumstances that affect the child's welfare." Plaintiff also argues the judge
deprived her of "due process" by his "extreme bias against [her]" as reflected in
the "judge's venomous statements." We disagree.
In any custody or parenting time dispute, "it is well settled that the court's
primary consideration is the best interests of the child[]." Hand v. Hand, 391
N.J. Super. 102, 105 (App. Div. 2007). Thus, a parent seeking to modify a
parenting time schedule "bear[s] the threshold burden of showing changed
circumstances which would affect the welfare of the child[]." Todd v. Sheridan,
268 N.J. Super. 387, 398 (App. Div. 1993) (citing Sheehan v. Sheehan, 51 N.J.
Super. 276, 287 (App. Div. 1958)). See also Lepis v. Lepis, 83 N.J. 139, 157
(1980).
To determine whether the requisite changed circumstances exist, the court
must consider the circumstances that existed at the time the current order was
entered. Sheehan, 51 N.J. Super. at 287-88. Then, the court can "ascertain what
motivated the original judgment and determine whether there has been any
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change in circumstances." Id. at 288. Once the moving party makes a prima
facie showing of changed circumstances, only then is the moving party entitled
to "a plenary hearing as to disputed material facts regarding the child's best
interests, and whether those best interests are served by modification of the
existing . . . order." Faucett v. Vasquez, 411 N.J. Super. 108, 111 (App. Div.
2009).
In general, because the Family Part has special expertise in family matters
and the opportunity to observe witnesses first-hand, we defer to factual
determinations made by the trial court as long as they are "supported by
adequate, substantial, and credible evidence in the record." Milne v.
Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Cesare v. Cesare,
154 N.J. 394, 413 (1998)). However, we review the Family Part's interpretation
of the law de novo. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140
N.J. 366, 378 (1995). Notably, a decision concerning custody and parenting
time rest in "the sound discretion of the trial courts." Pascale v. Pascale, 140
N.J. 583, 611 (1995). See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135,
157 (App. Div. 2003) ("Judges of the Family Part are regularly called upon to
make exceedingly difficult and delicate decisions as to the best interest of
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children, and we are obliged to give deference to both their findings and the
exercise of their sound discretion.").
Here, we find no error in the judge's determination, and we discern no
abuse of discretion. Pending the completion of DCPP's investigation, plaintiff's
allegations were supported only by her own account, and, given her past false
accusations against defendant and attempts to deprive him of parenting time, the
judge did not find her to be credible. "Where, as here, intimate knowledge of
the circumstances . . . has been gained by the judge through perennial contact
with the case, we should not substitute our judgment for his, except for
compelling reasons." Schwartz v. Schwartz, 68 N.J. Super. 223, 232 (App. Div.
1961). Here, no such reasons appear. Because plaintiff did not meet the changed
circumstances threshold, the judge was not obliged to hold a best-interests
plenary hearing on the OTSC. However, because the application was denied
without prejudice, plaintiff is not precluded from refiling the application,
supported by corroborating evidence.
To the extent we have not specifically addressed any remaining arguments
raised by plaintiff, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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